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declarations of others; and, unless adopted or sanctioned by the defendants, by some reply or statement, or by some act done in pursuance of their suggestions, they ought not to prejudice the defendants."

And to like effect are Consolidated Grocery Co. v. Hammond, 175 Fed. 641, 99 C. C. A. 195 (C. C. A. 5th Cir.), and Security Trust Co. v. Robb, 142 Fed. 78, 73 C. C. A. 302 (C. C. A. 3d Cir.).

[4] The warrant of deportation recites also that petitioner has been found within the United States in violation of section 6 of the Chinese Exclusion Act, being a Chinese laborer not in possession of a certificate of residence, and that he entered the United States in violation of section 36 of the Immigration Act. If it be granted there is evidence to support these conclusions, yet if it does not appear that the entry into the United States was within three years of petitioner's arrest, can he be deported under the summary proceedings of sections 20 and 21 of the Immigration Act, which provide for arrest and deportation on the warrant of the Secretary of Labor, or must the deportation proceedings be under section 13 of the Chinese Exclusion Act, which provides for a hearing before a United States commissioner, with right of appeal in case of conviction, to a judge of the District Court?

Prior to the decision of the Supreme Court in United States v. Wong You, 223 U. S. 67, 32 Sup. Ct. 195, 56 L. Ed. 354, it was much mooted whether in the deportation of Chinese aliens the provisions of the Chinese Exclusion Act must alone be followed, or whether the procedure of sections 20 and 21 of the Immigration Act might also be employed. In section 43 of the Immigration Act it is provided that the act shall not be construed to repeal, alter, or amend existing laws relating to the immigration or exclusion of Chinese. In the last-cited case the Chinese were arrested in transitu on charge of having entered the United States surreptitiously from Canada at a point not designated as a port of entry, and without having produced a certificate of examination as required by the immigration laws of the United States, and were ordered by the Secretary of Labor to be deported in a proceeding brought under sections 20 and 21 of the Immigration Act. The District Court held that, while the Immigration Act did not repeal any provision of the Chinese Exclusion Act, it did provide for its enforcement the additional and more summary remedy afforded by the former for deporting Chinese who came within its provisions, and the Chinese there seeking relief by habeas corpus were remanded. 176 Fed. 933. On appeal it was held by the Circuit Court of Appeals, Second Circuit, that Chinese could not be deported under the provisions of the Immigration Act, but only under the Chinese Exclusion enactments, which alone applied to Chinese aliens. 181 Fed. 316, 104 C. C. A. 535. But the Supreme Court, holding the Circuit Court of Appeals erred in its interpretation, said (Wong You v. United States, supra):

"By the language of the act [Immigration Act] any alien that enters the country unlawfully may be summarily deported by order of the Secretary of Commerce and Labor at any time within three years. It seems to us unwarranted to except the Chinese from this liability because there is an earlier, more cumbrous proceeding which this partially overlaps."

Sections 20 and 21 of the Immigration Act provide for deportation only where the entry was within three years of the arrest, and concluding as we do that this record affords no basis for finding that this petitioner entered the United States within three years before his arrest, his deportation under the Immigration Act is unauthorized.

The order of the District Court, discharging the writ of habeas corpus and remanding the petitioner, is reversed, and the cause remanded to that court, with direction to discharge the petitioner.

(2234 Fed. 28)

WONG YUEN v. PRENTIS, Immigration Inspector.
(Circuit Court of Appeals, Seventh Circuit. April 11, 1916.)

No. 2308.

1. ALIENS 54-CHINESE PERSONS-DEPORTATION.

To deport a Chinese person on the ground of his being in the United States in violation of Immigration Act Feb. 20, 1907, c. 1134, 34 Stat. 898 (Comp. St. 1913, §§ 4242-4289), in that he was a person likely to become a public charge and that he entered without inspection, it must appear that deportation proceedings were begun within three years after his entry.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. ~ 54.]

2. ALIENS 54-ENTRY—UNLAWFUL ENTRY.

That a Chinese person was found in a freight car billed and sealed from a point in New York, and passing thence into and out of Canada and back into the United States, after the car returned to the United States, does not show that the Chinese person entered the United States in violation of law.

[Ed. Note.-For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. 54.]

3. ALIENS 54-DEPORTATION-UNLAWFUL ENTRY.

Proof that a Chinese person had been deported in November, 1910, for attempting to enter on a fraudulent certificate, does not show, nearly four years later, that his subsequent entry into the United States was within three years of the institution of proceedings for his deportation.

[Ed. Note. For other cases, see Aliens, Cent. Dig. § 112; Dec. Dig. 54.]

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Petition by Wong Yuen for a writ of habeas corpus against P. L. Prentis, Immigration Inspector. From an order dismissing the writ and remanding petitioner, he appeals. Reversed, and cause remanded, with directions to discharge petitioner.

Wm. R. Medaris, of Chicago, Ill., for appellant.

Chas. F. Clyne, M. L. Igoe, and Benjamin Epstein, all of Chicago, Ill., for appellee.

Before KOHLSAAT, MACK, and ALSCHULER, Circuit Judges. ALSCHULER, Circuit Judge. [1] In a proceeding under the Immigration Act, the Secretary of Labor ordered the deportation of ap

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

pellant, a Chinese, on the ground of his being in the United States in violation of the Immigration Act of February 20, 1907, as amended, in that he was a person liable to become a public charge at the time of his entry into the United States, and that he entered without the inspection contemplated by said act. Section 36, rule 12. Writ of habeas corpus to obtain his release was dismissed by the District Court, and the petitioner was ordered remanded, such action of that court being involved in this appeal. Being brought under the procedure of the Immigration Act, we are met at the outset with the question whether there is evidence from which it may be fairly concluded that the proceedings were begun within three years of petitioner's entry into the United States, an essential prerequisite in proceedings under that act, as we held in Moy Wing Sun v. Prentis, No. 2273, 234 Fed. 24, 148 C. C. A. 40.

Petitioner claims he was born in the United States, and that he never departed therefrom. That he lived at Chicago quite a number of years, prior to about 4 years before his arrest, is without contradiction shown by the evidence. He maintains that on leaving Chicago he went to Boston, remaining there until, traveling west and intending ultimately to go to Chicago, he was arrested at Gary, Ind. The government contends that he, with two other Chinese, was taken from a sealed Wabash Railroad freight car, which had started from New Jersey, passed into Canada, and again back into the United States at Detroit, on its way to Chicago; that at Gary one of the trainmen became aware that there were persons inside of the car, and upon opening the car found petitioner and the other two, and had them placed in jail. Petitioner testified he was not in any freight car at all, but that he came to Gary on a passenger train, and was walking along the railroad. tracks when arrested.

No evidence was offered to prove this contention of the government, save that on the hearing Mr. Ebey, an immigration inspector before whom the hearing was had, and who also conducted it on the part of the government, made the following offer:

"The government offers in evidence the transcript of an examination of R. H. Deadman and C. M. Ritchey made in the immigration office September 22d, and advises counsel for the alien that, if he desires to submit any counter statement from these witnesses, it will be received in evidence."

The statements appear to be an unsigned transcript of what purport to be stenographers' notes of some conversation with Mr. Ebey, or examination by him, out of the presence of the accused or any one representing him, some days prior to his hearing. The statement recites that Deadman was sworn, but no certificate of any oath appears, nor anything to indicate who administered the oath. It does not appear that Ritchey was sworn at all.

These men were Wabash train employés, running through Gary, and probably to Chicago, and it is fair to presume that, had the government desired, they would have been present at the hearing, quite regardless of whether or not their attendance could have been compelled. Where the issue is far less grave than the right to reside in this country of a human being claiming to be a citizen thereof, witnesses are

frequently and properly brought long distances and at much expense to testify. The use by the government of ex parte statements of persons whose oral testimony would have been conveniently, readily, and inexpensively available might bear on the fairness of an administrative hearing such as this. Mr. Ebey's proposal to receive in evidence any counter statement of these men which counsel for the Chinese might succeed in procuring, while probably made in good faith and as an intended act of grace, did not confer a privilege of any appreciable practical benefit.

[2] But the statements themselves merely say that three Chinese were taken from the car. Petitioner was not identified as one of those so taken. Some photographs of Chinese were submitted to Deadman, who said Chinamen all looked alike to him. Deadman says the car was originally billed from Hoboken, N. J., and rebilled from Black Rock, N. Y. If sealed at one of these places, and the seal was first broken at Gary, Ind., then petitioner entered the car in the United States and remained in it continuously till he left it in the United States, and the fact that the car en route passed into and out of Canada would not of itself make unlawful petitioner's entry into the United States.

Petitioner may have lied in saying he came to Gary on a passenger train, but it is not material whether he came thus or by freight; and, besides, proving him a liar does not of itself show his entry into this country within three years of his arrest.

[3] It is claimed that he answers the description of a Chinese who was deported in November, 1910, for attempting to gain entry on a fraudulent certificate. But that deportation took place nearly four years before this arrest, and does not prove petitioner entered within three years before his arrest on the charge here in issue.

There is an entire want of evidence to show that the petitioner's arrest was within three years of his entry into the United States, and we therefore hold invalid this deportation proceeding under the Immigration Act.

The order of the District Court, dismissing the writ of habeas corpus and remanding the petitioner, is reversed, and the cause is remanded, with direction to the court to discharge the prisoner.

(234 Fed. 30)

FRONTIER S. S. CO. v. CENTRAL COAL CO.

(Circuit Court of Appeals, Seventh Circuit. April 18, 1916.)

No. 2243.

SHIPPING 150-ACTIONS-BILL OF LADING-PRESUMPTIONS.

Defendant entered into a contract with a shipping company to carry its coal for a whole season. Such company contracted with a second company to transport defendant's coal, and the second company's manager engaged one of libelant's steamships for such purpose. The bill of lading issued by the master of libelant's vessel referred to the contract for the freight rate. In case of previous shipments in libelant's vessels, defend

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

ant paid the company with which it contracted, and such company paid the actual carriers. Held that, while the law implies a promise to pay the freight, where there is a bill of lading, and acceptance by the consignee is proven and unexplained, yet, in view of the knowledge of libelant and the previous method of freight payments, such implied promise was rebutted, though defendant accepted the coal transported in libelant's ship, and the bill of lading issued by the master provided for payment at the agreed freight rate.

[Ed. Note. For other cases, see Shipping, Cent. Dig. §§ 225, 226, 511; Dec. Dig. 150.]

Appeal from the District Court of the United States for the Eastern District of Wisconsin.

Suit by the Frontier Steamship Company against the Central Coal Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Appellant, a New York corporation, is engaged in transportation upon the Great Lakes. Appellee is a corporation of Wisconsin, and is a large dealer in coal. Appellant, on September 25, 1912, brought this suit against appellee in the District Court to recover freight charges earned by its steamer Munro in carrying coal from Lorain, Ohio, and delivering same to appellee at Milwaukee, Wis. The record discloses the following facts and circumstances with reference to the transaction:

Appellee contracted with Franklin Steamship Company and Fremont Steamship Company, jointly, for the transportation of all coal which should be received by it at Milwaukee and Green Bay, Wis., and Escanaba, Mich., during the navigation season of 1909, and agreed to pay freight at the rate of 40 cents per ton for coal delivered at Milwaukee, and 35 cents for coal delivered at the other two ports. Said Franklin and Fremont Companies subsequently, on May 27, 1909, through Herbert K. Oakes, their respective manager, entered into a contract with the Weston Transit Company, through W. M. Mills, its manager, whereby the latter company agreed to carry a part of such coal. The provisions of this latter contract essential to a consideration of the case are as follows:

* *

*

"For and in consideration of the rates of freight hereinafter named, the party of the second part [Weston Transit Company] hereby agrees to transport from Lake Erie ports, during the season of navigation of 1909, all coal required by the Central Coal Company, of Milwaukee, Wis., and said first parties agree to furnish such coal to said second party. *It is hereby agreed that the rate of freight to be paid for transporting said coal from Lake Erie ports shall be as follows: To Escanaba, Michigan, 35 cents per ton of 2,000 pounds; to Green Bay, Wisconsin, 35 cents per ton of 2,000 pounds; to Milwaukee, Wisconsin, 35 cents per ton of 2,000 pounds. All of said coal to be consigned to Central Coal Company, and unloaded at its docks at said ports."

At the time this contract was executed, appellant, through its agent, the Lake Transportation Company, was advised that the Franklin and Fremont Steamship Companies had the contract for carrying all of appellee's coal delivered at its docks at Milwaukee, Green Bay, and Escanaba. The contract follows the terms of and makes evident reference to the contract between appellee and the two steamship companies-Franklin and Fremont. So that there can be no doubt that both Mills and Speddy, managers respectively of the Weston and Frontier Companies and the Lake Transportation Company, knew that appellee's contract was with the so-called Oakes companies. Under the above contract the Weston Transit Company transported and delivered to appellee during the season coal aggregating about 115,000 tons. Having but three boats of its own, it found it necessary to engage additional vessels for carrying this tonnage. Its manager, Mills, being also manager of appellant, as well as of other steamship companies, was in a position to and did place at the disposal of the Weston Transit Company, in performing its said contract of carriage, a number of boats which he thus controlled, in

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